ABlawg: Year in Review, 2017

By: ABlawg Writers

PDF Version: ABlawg: Year in Review, 2017

As we take stock of the year that was, ABlawg is pleased to provide our highlights from 2017, consisting of some statistics and a roundup of our bloggers’ contributions in substantive areas of law this past year.

The Numbers

ABlawg has published 156 posts so far in 2017. The post that generated the most hits this year was Alice Woolley’s The Incarcerated Complainant: Submissions to the Minister of Justice, with 2539 views overall (and see a second post on the same case here). Close behind were Jennifer Koshan’s post Another Workplace Death Illustrates the Need for More Enhanced Protections for Farm Workers with 2290 views, and Martin Olszynski’s post In the Growing Wave of Climate Litigation, Could the Automobile Industry be Next? with 2183 views. Overall, six ABlawg posts had more than 2000 views in 2017 (see also Drew Yewchuk, R v Cody: The Supreme Court Stands Their Ground on Unreasonable Delay, Jennifer Koshan, Sexual Assault, Starting Points, and Court of Appeal Panel Composition: A Chilling Effect on Individualized Sentencing? and Jonnette Watson Hamilton, When are Late Payment of Rent Charges in Residential Tenancies Unenforceable?).  Continue reading →

ABlawg’s Clawbie Nominations for 2017

In this year where we marked the 150th anniversary of the Canadian federation – for all its flaws and omissions – ABlawg nominates a number of Canadian law blogs with a constitutional / public law focus:

Thanks to all Canadian law bloggers for a wonderful and stimulating year of reading! #clawbies2017

A Questionable Equity: Rectification and Tax Avoidance

By: Drew Yewchuk

PDF Version: A Questionable Equity: Rectification and Tax Avoidance

Case Commented On: Harvest Operations Corp. v Attorney General of Canada, 2017 ABCA 393 (CanLII)

Harvest Operations Corp. v Attorney General of Canada (Harvest Operations Corp. CA) is a case about an elaborate but unsuccessful tax avoidance maneuver and an attempt to get contract rectification. The details of the attempted tax avoidance are unreasonably complicated, and so I will focus on the facts necessary for the rectification issue (if you want to learn how to correctly perform the “bump transaction” method of avoiding capital gains tax, this post will not help you). Continue reading →

Court Confirms that Good Faith Fulfilment of Modern Treaties is Essential to the Project of Reconciliation

By: Nigel Bankes

PDF Version: Court Confirms that Good Faith Fulfilment of Modern Treaties is Essential to the Project of Reconciliation

Case Commented On: First Nation of Nacho Nyak Dun v Yukon, 2017 SCC 58 (CanLII)

In this unanimous decision authored by Justice Karakatsanis, the Supreme Court of Canada confirmed what seems like an obvious proposition, namely that good faith fulfilment of modern treaties is a necessary condition for the project of reconciliation. The Court concluded that the land use planning process established by the Yukon Final Agreements permitted Yukon to modify a Recommended Final Plan (in this case the Peel Watershed Regional Land Use Plan), but that the power to modify did not include the power to change a Plan “so significantly as to effectively reject it” (at para 39). More specifically, Yukon’s power to modify was confined by the scope of the issues that it had raised during the planning process; it could not raise significant new issues although it could respond to changing circumstances. As a result, Yukon’s purported approval of the Plan was invalid (at para 35). Continue reading →

Dunsmuir is Dead – Long Live Dunsmuir! An Argument for a Presumption of Correctness

By: Martin Olszynski

PDF Version: Dunsmuir is Dead – Long Live Dunsmuir! An Argument for a Presumption of Correctness

Case Commented On: Garneau Community League v Edmonton (City), 2017 ABCA 374 (CanLII)

Garneau is the latest judicial plea to the Supreme Court of Canada to do something about the standard of review – three judges, three judgments, all concurring in the result but each getting there somewhat differently. The case involves Alberta’s Municipal Governments Act, RSA 2000 c M-26, including statutory rights of appeal that are similar to those recently considered by the Supreme Court (and only slightly less recently considered by the Alberta Court of Appeal) in Edmonton (City) v Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47 (CanLII). In this post, I highlight Justice Watson’s and Slatter’s concerns about the standard of review framework as set out in Dunsmuir v New Brunswick, 2008 SCC 9 (CanLII) and its progeny. Before doing so, however, I first provide a primer on the Dunsmuir framework wherein I flag some of my own concerns. Drawing on these two parts, I then propose two concrete changes to the Dunsmuir framework that in my view would render it more coherent and stable, both doctrinally and practically.  Continue reading →